Agustín Parise: Research Associate, Center of Civil Law Studies, Louisiana State University Law Center. LL.B. (Universidad de Buenos Aires 2001). LL.M. (Louisiana State University Law Center 2006). S.J.D. candidate (Universidad de Buenos Aires-dissertation pending). Lecturer in Legal History (auxiliar docente), Universidad de Buenos Aires 2001/2005.
The author is indebted to Professors Abelardo Levaggi, Robert A. Pascal, and Saúl Litvinoff for their suggestions and constructive criticisms. Special thanks are due to Professor Olivier P. Moréteau, Director of the Center of Civil Law Studies at LSU, for his constant support and valuable advice. Thanks are also due to the personnel of the LSU Law Center Library and the Tulane Law School Library. For editing assistance, the author expresses his gratitude to Dr. Joseph Abraham of the LSU Writing Center and to John Casey Cowley, Esq.
The Louisiana Civil Code of the year 1825 ("Louisiana Civil Code") had a strong presence in the worldwide nineteenth century codification movements. This Article shows that the influence of the Louisiana text was not limited to the codification endeavors of French-1 or English-speaking2 countries; but that it also extended to other codification works drafted in Spanish.3
The Louisiana Civil Code was influential in codification projects due mainly to the inclusion of references to it in a Spanish scholarly production by Florencio García Goyena: Concordancias, Motivos y Comentarios del Código Civil Español (Concordancias) of 1852.4 The Concordancias commented on the project of Page 825 drafting a civil code for Spain (the "Spanish Project") and mentioned exactly 1,103 articles of the Louisiana Civil Code throughout the comments to the 1,992 articles that comprise the Spanish Project. The Concordancias proved to be a handy reference for the codification projects in Spain and Latin America. Thanks to the Concordancias, the influence of the Louisiana Civil Code spread to regions that intended to adopt civil codes during the nineteenth century.
The Louisiana Civil Code was also influential in codification projects because of the inclusion of its text in the 1840 French work by Fortuné Anthoine de Saint-Joseph: Concordance entre les Codes civils étrangers et le Code Napoléon ("Concordance").5The Concordance was used by codifiers around the world when they needed to refer to the existing legislative precedents in a given area of law.
This Article will focus mainly on the Concordancias. The Concordancias and the Concordance were, in practice, the most efficient ways to provide codifiers with complete surveys of pertinent codification developments of the time. To have a complete comparative legal library was not only very expensive and impractical, but also very rare.6 Page 826
This Article (1) mentions some aspects of the main codification movements in Europe, the United States of America, Spain, and the state of Louisiana; (2) explains the structure of the Concordancias, the references to the Louisiana Civil Code within them, and the influences that the Concordancias had in Spanish and Latin American codifications; and (3) provides, by means of three appendices,7 an example of a scholarly comment to one of the articles of the Spanish Project included in the Concordancias, a complete outline of the Spanish Project, and a survey of the different articles of the Louisiana Civil Code that are mentioned in the Concordancias. This Article will help readers understand the place that the Louisiana Civil Code occupied in nineteenth century Hispanic codification endeavors.
Codification,89 as it is understood today,10 experienced a development during the eighteenth and nineteenth centuries.11Several countries in the Western hemisphere engaged in a general pursuit of the codification of their civil law dispositions. The processes of scientific revolution-which had started with the Enlightenment and Humanist Movement and was followed by Page 827 Rationalistic Natural Law Theorizing-led the way to codification.12 Codification was a way of ordering the law and replacing the existing provisions with new ones,13 grouping the different areas of law in an organic, systematic,14 clear, accurate, and complete way.15 Moreover, codification was technically superior to the systems of mere compilation that had previously existed throughout Europe.16 Among its formalistic operations, codification included laying out a plan and expressing that plan with terminology and phraseology.17
Ruled by the new political, intellectual, and legal environment,18 the European continent was an appropriate place for the early developments of codification. For almost 250 years, many civil codes were drafted and enacted for the different regions of the Western hemisphere. Among those drafts, four codification endeavors were of significant importance.
Early interest in modernizing codes resulted first in 1683 with the enactment of the Danske Lov (Danish Law),19 which was a product of the Scandinavian absolutist codification movements.20In 1756, a civil code called Codex Maximilianeus Bavaricus Civilis21 was drafted by Wiguläus Xaverius Aloysius Freiherr von Page 828 Kreittmayr22 for the Duchy of Bavaria (now part of Germany).23This second code was a summary of the Roman law applicable in that region,24 which at that time had mutated into a German common law.25 Prior to the enactment of the civil code in 1756, Bavaria had enacted a criminal code (in 1751) and a code of procedure (in 1753) and was thus the first region of Europe to enact these three codes.26
The codification movements were also marked by the drafting of the French Civil Code of 1804 ("Code Napoléon") and the exegetic school of interpretation that was developed after its enactment.27 This exegetical school advocated the protection of the text of the Code Napoléon and pursued a veneration of the text of the law and the intention of the codifiers.28 As a result of that method, the Code Napoléon had a strong influence on codification movements worldwide.29 The Code Napoléon was effective in the Page 829 colonies of the French Empire (e.g., in Martinique and Guiana)30and followed the armies of Napoleon (e.g., in Belgium and the Hanseatic territories).31 Additionally, it was adopted through direct persuasion (e.g., in the Grand Duchy of Warsaw and Westphalia).32 After France's expansionist military campaigns ended, other European territories voluntarily adopted, either by simple translation or with considerable modifications, several dispositions of the Code Napoléon (e.g., in the Netherlands and Romania).33 The expansion of the Code Napoléon was not limited to Europe. In Latin America, the Code Napoléon served as inspiration for several countries34 (e.g., in Argentina35 and Peru36). In Africa, its influence was less significant37 (e.g., in Egypt38). Finally, in the Near East, Lebanon was inspired by the French text; and in the Far East, Japan drafted a civil code significantly influenced by the French text,39 which was applied without legislative approval from 1880 to 1896.40
Another notable development in codification was the enactment of the Bùrgerliches Gesetzbuch (BGB), or the Civil Code of Germany, in 1896. The BGB was a product of nineteenth- century German legal science and inspired the drafting of several twentieth century civil codes.41 Examples of its influence are the Page 830 Brazilian, Greek, Italian, and Portuguese civil codes.42 The influence of the BGB also extended to the codification works in Austria, Czechoslovakia, Hungary, Switzerland, Yugoslavia,43 the Scandinavian countries, the USSR,44 and even China and Japan.45In Latin America, a commission designated during the second decade of the twentieth century to amend the Civil Code of Argentina of 1871 claimed the BGB as one of its main sources of inspiration.46
According to the aforementioned survey, both the Code Napoléon and the BGB turned out to be sources of inspiration for most other modern civil codes, not only in Europe, but also in Asia, Africa, and the Americas.47
The United States of America was not immune to the codification movements.48 Among the states that sought a codified system of civil law were Alabama,49 California, Louisiana, Montana, North Dakota, South Dakota,50 New York, and South Carolina.51
The United States codification movements derived their inspiration from three main sources: Jeremy Bentham's utilitarian Page 831 theory, the Code Napoléon, and David Dudley Field.52 The second was a useful mold that seemed to apply to the conditions in the United States and provided to the codifiers a code system that seemed to function correctly and with good results.53 David Dudley Field, influenced by the works of Jeremy Bentham,54advocated codification during the mid-nineteenth century.55 After drafting a civil code and four more codes in the period from 1847 to 1865,56 Field gained a paramount position among the codifiers in the United States.57 He believed that there was a need for a political code, a code of civil procedure, a code of criminal procedure, a code of private rights and obligations, and a code of crimes.58 Many consider...